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Filed 10/30/23 P. v. Hughes CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v. JOSHUA HUGHES,

Defendant and Appellant. C096922 (Super. Ct. No. NCR92856)

Defendant Joshua Hughes pled guilty to maintaining a place for selling or using a controlled substance and was placed on probation for three years

. In August 2022, a fter
three summary revocations of probation, the trial court terminated defendant’s probation and sentenced defendant to eight months

. However, effective January 1, 2021, Assembly Bill No. 1950 ( 2019

- 2020 Reg. Sess.) (Assembly Bill 1950) (Stats. 2020, ch. 328, §§ 1, 2) amended Penal Code section 1203.1 to limit the maximum term of probation a trial2

court could impose for most felony offenses, including defendant’s, to two years. 1 On appeal, defendant argues that pursuant to Assembly Bill 1950 , his probation should have been terminated before the probation violation that led to the termination of his probation
occurred. Because the trial court terminated defendant’s probation after Assembly Bill 1950 went into effect, we agree and will reverse the order revok ing and terminating probation

. I. BACKGROUND
In January 2015, d efendant was granted three years ’ probation after pleading guilty to maintaining a place for selling or using a controlled substance (Health & Saf. Code, § 11366) in Tehama County Superior Co urt case No. NCR92856 ( case No. 2856 )

. In December 2016 the probation department filed a petition for revocation of probation, the trial court summarily revoked probation, defendant admitted the probation violation in April 2017 , and the trial court reins tated probation . Eight months later the probation department filed a second petition for revocation of probation, the trial court again summarily revoked probation, defendant admitted the probation violation in June 2019 , and the trial court again reinsta ted probation . After defendant admitted the second probation violation, the trial court added an additional year and tolled the period to defendant’s probation period, extending defendant’s time on probation to January 8,
2021.
O n May 5, 2020, the proba tion department filed a third petition for revocation of probation alleging that defendant again violated the terms of his probation and his
whereabouts were unknown. The next day , t he trial court summarily revoked defendant’s probation and issued a bench warrant. In May 2021, defendant was arrested on the warrant and released on a promise to appear

. Defendant was in and out of warrant status

1 Undesignated statutory references are to the Penal Code.3

until he was arrested in May 2022 for possession for sale of a controlled substance (Health & Saf. Code, § 11351) in Tehama County Superior Court case No. 22CR

- 001169 ( case No. 1169 )

. In July 2022, defendant filed a motion to terminate probation in case No. 2856

. Defendant argued that under section 1203.1, as amended by Assembly Bill 1950, the trial
court la cked jurisdiction to proceed on a violation of probation, because the alleged violation occurred after defendant had already been on probation for two years. At the
formal probation hearing in July 2022, t he trial court denied defendant’s motion

. Pursuan t to a plea agreement, defendant then pled guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11351) in case No. 1169 and admitted he violated probation in case No. 2856. In August 2022, t he trial court sentenced defendant

to t wo years in case No. 1169 and also terminated probation and imposed a consecutive eight months in case No. 2856. Defendant timely filed an appeal in case No. 2856 only.
II. DISCUSSION Defendant contends that Assembly Bill 1950 requires this court to va cate his
sentence in case No. 2856. Specifically, defendant argues that Assembly Bill 1950 retroactively terminate d his probation in January 2017 , three years before the third probation violation ; thus, the trial court lacked jurisdiction to summarily revoke his probation in 2020 and terminate his probation in 2022 . The People agree on the broader point that Assembly Bill 1950 applies retroactively to any case not final as of the effective date, but disa gree that the ameliorative benefits of Assembly Bill 1950 apply to
this case. The People contend that because defendant’s probation was properly summarily revoked before Assembly Bill 1950 took effect , the new legislation does not operate to retroactively invalidate the revocation of probation or divest the trial court of jurisdiction to adjudicate his third probation violation under related statutes. We agree with defendant

.4

Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1,
subdivisio n (a) to limit the probation term for felony offenses to two years, except in
circumstances absent here. (Stats. 2020, ch. 328, § 2; § 1203.1, subd. (a); People v. Lord (2021) 64 Cal.App.5th 241, 244

- 246 .) Because the new law mitigates punishment and
the re is no savings clause, it operates retroactively. ( In re Estrada (1965) 63 Cal.2d 740, 748; People v. Sims (2021) 59 Cal.App.5th 943, 964 ; Lord , supra , at pp. 24 5

- 246 .) We and other appellate courts have thus unanimously concluded that Assembly Bill 1950 “applies retroactively to defendants who were serving a term of probation when the legislation became effective on January 1, 2021; in such cases, the courts have acted to

r educe the length of their probation terms.” ( People v. Faial (2022) 75 Cal.App.5th 738, 743, rev

. granted May 18, 2022, S273840 ( Faial ) , citing People v. Greeley (2021) 70 Cal.App.5th 609, 627 , People v. Czirban (2021) 67 Cal.App.5th 1073, 1095 , People v. Schulz (2021) 66 Cal.App.5th 887, 894

- 895 , Lord , supra , at pp. 244

- 246 , Sims , supra , at
p. 964 , & People v. Quinn (2021) 59 Cal.App.5th 874, 881

- 885.) However, appellate courts disagree as to whether Assembly Bill 1950 applies retroactively “when, as here, the defendant has engaged in misconduct that would constitute a probation violation under the original sentence, and that misconduct occurred before t he bill ’ s effective date, but more than two years after the defendant ’ s sentencing.” ( People v. Jackson (2023) 93 Cal.App.5th 207, 212 , rev

. granted Sept. 13, 2023, S28 1 267 ( Jackson ) , citing People v.
Canedos (2022) 77 Cal.App.5th 469 , 469 , rev

. granted J une 29, 2022, S274244 ( Canedos ) & Faial

, supra , at p. 738.) Our Supreme Court is now reviewing this question in cases from other districts , notably Faial and Canedos

. The People rely on Faial , which held that Assembly Bill
1950 did not retroactively apply to a defendant whose probation was both summarily revoked and terminated prior to Assembly Bill 1950 taking effect. ( Faial , supra , 75 Cal.App.5th at p p . 745

- 746 , rev

. granted .) Defendant relies on Canedos , which held that Assembly Bil l 1950 applied retroactively to shorten the defendant’s probation period5

even when his probation was both summarily revoked and terminated prior to Assembly Bill 1950 taking effect, because his appeal was pending when Assembly Bill 1950 took effect. ( Cane dos , supra , 77 Cal.App.5th at pp. 474, 477 , rev

. granted.) More recently, in
Jackson , a different division in the First District disagreed with their colleagues in Faial
and relied on Canedos in holding that Assembly Bill 1950 applies retroactively to
def endants whose probation is summarily revoked prior to Assembly Bill 1950’s effective date but is not terminated until after Assembly Bill 1950’s effective date. ( Jackson, supra , 93 Cal.App.5th at pp. 211

- 212 , rev. granted .) Here, as in Jackson , the
trial court also summarily revoked defendant’s probation before Assembly Bill 1950 took effect but did not terminate defendant’s probation until after Assembly Bill 1950 took effect. We therefore agree with Jackson and hold that the Estrada presumption of retroactivity applies to this case, because neither the trial court’s revocation of probation (a formal hearing was still pending) nor defendant’s original conviction were final under
Estrada when Assembly Bill 1950 took effect on January 1 , 2021. ( Jackson , supra , at p. 212, citing Canedos , supra , at pp. 473

- 474.)
For Estrada purposes, t he finality of a case is determined by whether the “criminal prosecution or proceeding” against the defendant was “ complete when the ameliorative legislatio n at issue took effect .” ( People v. Esquivel (2021) 11 Cal.5th 671 , 678.) A s the People concede, the central holding of Esquivel is that an order revoking probation does not render a case final for purposes of Estrada

. ( Jackson , supra , 93 Cal.App.5th at p.
213 , rev. granted , citing Canedos , supra , 77 Cal.App.5th at p. 476, rev

. granted

. ) Following the summary revocation of defendant’s probation, a formal hearing on defendant’s probation violation, where the trial court would decide whether there was a probation violation and whether to reinstate or terminate probation, was still pending when Assembly Bill 1950 took effect. ( People v. Leiva (2013) 56 Cal.4th 498 , 505, 516 ( Leiva ) .) D espite the summary revocation of his probation before Ass embly Bill 1950 took effect, the proceedings against defendant were not complete, thus, d efendant’s case6

was nonfinal for the purpose of Estrada

. ( Jackson , supra , at p. 213 , citing Canedos , supra , at p. 477 .) 2 Relying on Faial

, t he People argue that Assembly Bill 1950 did not “undertake to
amend section 1203.2 or section 1203. 3

— the statutes that confer and address [a trial

court ’ s] authority” to revoke and terminate probation when a defendant has violated its

terms. ( Faial

, supra , 75 Cal.App.5th at p. 744 , rev. granted .) However, it was not necessary for the Legislature to also amend section s 1203.2 and 1203.3, because th e Legislature amended section 1203.1, which govern s the maximum length of a period of probation . ( Jackson , supra , 93 Cal.App. 5th at pp. 213

- 214 , rev. granted .) It is well

settled that t he trial court is not permitted to find a probation violation based on conduct that did not occur during the original probationary period. ( Leiva , supra , 56 Cal.4th at pp. 514

- 515.) “[T] he conclusion that conduct occurring after the end of the two

- year probationary term cannot constitute a violation of that probation does not involve any change in the operation of the preexisting rules governing probation violations and

revocat ions, in a way that would have required some corollary amendment to sections
1203.2 or 1203.3. ” ( Jackson, supra, at p. 214 .) “ The only retroactive alteration is to the length of a defendant ’ s probationary term

— not to the rules governing when misconduct

m ust have occurred to constitute a violation of probation. ” ( Ibid .) Assembly Bill 1950 retroactively modified defendant’s probationary period so that it ended in January 2017

. The conclusion that his conduct in May 2020 cannot amount to a violation of tha t probation thus involves a simple application of the unmodified sections 1203.2 and 1203.3 to the modified probation term. As a result of the retroactive

2 We note that, similar to Jackson , the case for retroactive application is even stronger here than in Canedos . In Canedos , the trial court terminated the defendant’s probation before Assembly Bi ll 1950’s effective date ; whereas in this case defendant ’s formal hearing occurred when Assembly Bill 1950 was fully in effect.7

application of Assembly Bill 1950 , the trial court did not have jurisdiction to formally
revoke and terminate defendant ’ s probation, and we must reverse that order. We emphasize, however, that while criminal misconduct that occurs after a probation period as modified by Assembly Bill 1950 cannot constitute a probation violation, the People may still fil e new charges and prosecute based on that criminal misconduct. ( Jackson , supra , 93 Cal.App.5th at pp. 217

- 218 , rev. granted , citing Canedos , supra , 77 Cal.App.5th 469 , rev. granted .) III. DISPOSITION The order revoking and terminating probation in case No. NCR92856 is reversed

. T he matter is remanded with directions to enter an order modifying the term of probation imposed on January 21, 2015 , to two years, in accordance with section 1203.1, subdivision (a); reinstating probation; and terminating that p robation nunc pro tunc to January 21 , 201 7

. The eight

- month sentence in case No. NCR92856 is vacated. The
clerk of the court is directed to amend the abstract of judgment and forward the abstract of judgment to the Department of Corrections and Rehabilit ation.

/S/
RENNER, J.

We concur:

/S/ ROBIE, Acting P. J.

/S/
KRAUSE, J.